Michelle Lee: USPTO to Push Administration Goals in both Prosecution and Litigation

From Michelle Lee who is Deputy Under Secretary of Commerce for Intellectual Property; Deputy Director of the USPTO; and is de Facto Director of the USPTO. [Link]

Over the last five years . . . the agency’s senior leadership has made good progress to ensure our country has a strong and robust patent and trademark system for the 21st century.

. . . Going forward, the USPTO will continue to actively engage with our stakeholders, members of Congress from both political parties, as well as with others in the administration, to further improve our patent and patent litigation systems. That includes supporting Congress’ current consideration of legislation to target abusive patent litigation tactics and speed resolution of disputes over IP rights. And the USPTO will work to further the U.S. Department of Commerce’s vital role in ensuring the effective protection of IP to encourage innovation and retain America’s global competitiveness in a rapidly evolving online marketplace. I am especially eager to work with Commerce Secretary Penny Pritzker to “foster a more innovative U.S. economy—one that is better at inventing, improving and commercializing products and technologies that lead to higher productivity and competitiveness,” one of the key strategic goals articulated in the Commerce Department’s “Open for Business Agenda.” . . .

Having been born and raised in Silicon Valley—one of the most innovative regions in our nation—and having built my 25-year career as an engineer and IP attorney there, I have spent most of my life focused on creating innovative technologies and/or supporting and enabling those who do. It is indeed an honor to be able to continue on this path at the USPTO in my new role as Deputy Director of the agency. I am committed to working together with all our stakeholders to advance our shared goal of fueling the unique American ingenuity that fuels our nation’s job growth and economy.

62 thoughts on “Michelle Lee: USPTO to Push Administration Goals in both Prosecution and Litigation

  1. Apropos of functional claiming, check out this week’s latest treatment of it :link to cafc.uscourts.gov

    Computer claims limited by Dyk to avoid finding infringement (no surprise) but check out how he limits them by deciding that function verbs (gerund or infinitive did not appear to matter) limited the claim to the recited hardware configured with software for executing the claimed functions. 112(f) not implicated, MPF language not used.

    1. Love the link to the Nazomi case.

      Still all quiet on the software front when it comes to any hint of substantive discussion from the anti-software patent folk and that case.

      (no real surprise)

      1. It is not that “D posted on it awhile back,” but rather the lack of any substantive comment on the merits of the case from the anti-software patent crowd that is apropos.

        The Grand Hall experiment is laid open.

        The silence from the anti-software patent crowd is deafening.

        1. “It is not that “D posted on it awhile back,” but rather the lack of any substantive comment on the merits of the case from the anti-software patent crowd that is apropos.”

          I already commented on it. Twice. And I think I’m in that group according to you. Likewise MM did iirc. Maybe Ned?

          1. 6 states “I already commented on it. Twice.

            LOL – the guy who QQ’s about others inability to read (and who was recently busted in responding to a post from Ned, without actually reading Ned’s post) strikes again.

            Try actually reading my post, 6. Pay attention to the words “substantive comment on the merits.”

            You may have commented twice. Malcolm may also have commented, as Ned may have commented, but none of you have yet to provide substantive comments on the merits of the case.

            As I noted, this is yet another item to add to the list of items that are not discussed in any meaningful, intellectually honest manner by those who have an anti-software patent agenda.

      2. Not being in the habit of obsessing with your little circle jerk here, it is entirely possible that I missed a prior vapid post. Have you anything of intelligence to say about the case, or shall I simply adopt the default assumption that as a patent examiner you have no cognition but only snark in your repertoire?

  2. As discussed in the Amicus briefs filed in Nautilus v. Biosig, numerous recent governmental studies have identified broad, indefinite claims as the single greatest problem with the patent system today. As recently as this June, the white house tasked the PTO to develop strategies to improve patent clarity.

    Recommendation: Repeal 112(f).

    As noted in the recent threads on functional language in claims, functional language is a primary source of both indefiniteness and breadth. Halliburton v. Walker overruled Westinghouse v. Boyden Power Brake, a case that had authorized functional claiming but with a construction that the claim be construed to cover the corresponding structure described in the specification and equivalents. The Halliburton court noted the vagueness of functional claims created a zone of uncertainty that was not cured by the rule of construction.

    Congress passed 112(f) to overrule Halliburton on this point and restore Westinghouse. But it is manifest that the court in Halliburton was right on the zone of uncertainty created by functional claims. It is time to repeal 112(f).

    This should be the new deputy’s main mission in respond to the White House directive.

    1. the single greatest problem with the patent system today

      Ned, you really need to learn how to recognize propaganda.

      primary source of both indefiniteness and breadth

      See the joke as hinted at by Leopold.

      manifest that the court in Halliburton was right

      No Ned – again, you cannot resurrect an abrogated court case.

      1. Further to the point about the recent studies, you should be aware that Lemley’s organization was the source of the data – a source that the organization has not permitted independent verification of the raw data.

        1. Well, anon, about Lemley being the source, there does seem to be a close relationship between the list of companies that signed the Amazon/Google brief and Lemley and some other Silicon Valley professors.

          It would be interesting to see if Michelle Lee, ex of Google, supports their line of thinking.

          1. Although, as I understand it, Lemley want 112(f) to apply to every functional element by default, instead of the presumption being against. Thus where I would get rid of 112(f), Lemley would double-down.

            1. Ned states “Thus where I would get rid of 112(f),…

              You pretty much end up at the same point with your desire to then resurrect abrogated case law: weaker patents.

              No thank you.

            2. As if the thread here was not evidence enough, Ned now goes all “Douglas” on another thread and reveals the depth of his anti-patent agenda.

              Well, so much for the ‘good-cop/bad-cop’ script…

      2. What LB joke was that?

        Two points….

        1) Congress will await the Supreme Court in Nautilus even if Obama proposes a repeal; and

        2) You are not really advocating 112(f) are you. Not a patent practitioner alive goes anywhere near that statute.

          1. Au contraire, not only is humor a strong point for me, appropriate application of humor is a great strength.

            Poor Leopold has a rather unhappy view of that, being on the receiving end so often (sour grapes and all).

            (btw, the statement by Leopold that contains the macabre humor was: “confusing breadth with indefiniteness is a rookie mistake” on the thread link to patentlyo.com )

      3. Anon, When I first proposed to repeal 112(f), I was chair of the AIPLA patent law committee. That was circa 1994. I received little support, primarily because the bar still was in disbelief regarding Valmont. Rather, most preferred legislation to reverse Valmont and restore the more liberal construction that had prevailed prior. They also feared Halliburton, believing as it appears that the patent office now believes, viz, ex parte Mizazaki, that Halliburton implicated all functional claiming despite its limited holding as confirmed by Faulkner v. Gibbs.

        But as time went on, the claim form provided by 112(f) has all but been abandoned. The only people who continue use the form, I believe, are people trying to claim computer software and business methods. But, as we all know, the such artifices are not necessary as “configured to” suffices but without any 112(f) baggage.

        Thus where in 1994 there remained a strong constituency for preserving 112(f), I think that it has now vanished. The time is now ripe to propose a repeal. Few would not support it.

        But, as I said, given the Nautilus case, nothing will be done about 112(f) until that case is decided. The SC may so broaden Halliburton as to implicate any and all functionally defined claim elements — essentially endorsing Miyazaki. 112(f) may be still be required, but if so, I would propose to amend it to limit its applicability to claims that claim apparatus and that are functional at the point of novelty — pretty much also the lines I proposed above in the post “my take.”

        But your continued clinging to 112(f) is a puzzle. Why?

        1. But your continued clinging to 112(f) is a puzzle. Why?

          You are doing that ‘trying to put words in my mouth” thing again Ned, as I have NEVER indicated what you are trying to say.

          Miyazaki itself is an abhorrent Article I case that will implode all on its own.

          ps: you are STILL clinging to the canard of PON – why?

  3. A policy statement issued by a deputy?

    This all but confirms that the office of “Director” has been reduced in status from a presidential appointee to that of an appointee of the secretary of commerce.

    I don’t recall, but was the former Commissioner position a presidential appointee or was that position appointed by the Sec. of commerce?

    1. Not only that Ned, but this portends the accuracy in what Hal Wegner portrays as a true problem for the Executive branch, as this reinforces rather than dispels the notion that the appointment is tainted.

      One has to wonder why the gamesmanship is being employed. Why not simply nominate Lee?

    2. Dude, that ship sailed long ago. We are no longer governed by elected officials but ruled by bureaucratic mandarins, and have been for quite some time. Exhibit A: the ACA, repeatedly and remorselessly delegating the supervision of one sixth of the economy to “The Director of HHS”.

      The “Yes Minister” comedy was like so much in modern life – what the Brits created, they lampooned, but we took it seriously and perfected it.

      1. That ship may have sailed away, but it also appears to be returning to the harbor (note that there is another case of Obama abusing appointment power before the Supremes).

  4. Hey all you Silicon Valley types who insist that you need patents in order to extract money from the “investors” who rule your world: take a good look at your “rulers.”

    link to online.wsj.com

    Regarding your editorial “Censors on Campus” (Jan. 18): Writing from the epicenter of progressive thought, San Francisco, I would call attention to the parallels of fascist Nazi Germany to its war on its “one percent,” namely its Jews, to the progressive war on the American one percent, namely the “rich.”

    This is a very dangerous drift in our American thinking. Kristallnacht was unthinkable in 1930; is its descendent “progressive” radicalism unthinkable now?

    The phrase “out of touch” leaps immediately mind. So does “sick psycho nutcase.”

    Printed in the Wall Street Journal, of course, which is just another sad rag that specializes in endless propaganda on behalf of the wealthy.

    1. Wall Street Journal, of course, which is just another sad rag that specializes in endless propaganda

      As opposed to the sad rantings of endless propaganda from Malcolm here…

      (for some reason, I think the WSJ has a better reputation than Malcolm)

      /eyeroll

  5. I remember Bruce L. asking me where the PTO actually was. So Lee is just the continuum of non-patent attorneys heading the PTO.

    All of this nonsense started when the APLA became the AIPLA. The latter is now controlled by generalists masquerading as “IP” lawyers.

  6. ‘a strong and robust patent and trademark system for the 21st century’

    Sure, but only for the largest companies. Lee is a puppet for large business interests.

    The patent system now teeters on the brink of lawlessness. Meanwhile, the huge multinationals ship more and more US jobs overseas.

    It’s about property rights. They should not only be for the rich and powerful -campaign contributors. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the US economy, but the world’s. If we weaken the patent system, we force inventors underground like Stradivarius (anyone know how to make a Stradivarius violin?) and in turn weaken our economy and job creation. Worse yet, we destroy the American dream -the ability to prosper from our ingenuity for the benefit of our families and communities. To kill or weaken the patent system is to kill all our futures. Show me a country with weak or ineffective property rights and I’ll show you a weak economy with high unemployment. If we cannot own the product of our minds or labors, what can we be said to truly own. Life and liberty are fundamentally tied to and in fact based on property rights. Our very lives are inseparably tied to our property.

    Prior to the Supreme Court case eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the eBay decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back into the patent system with injunctions fully enforceable on all infringers by all patentees, large and small.

    Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

    For the truth about trolls, please see link to truereform.piausa.org.
    link to piausa.wordpress.com
    link to hoover.org
    link to ssrn.com

    1. It’s about property rights. They should not only be for the rich and powerful -campaign contributors.

      Indeed! Patent rights are for ordinary rich people, too!

    2. Hoover Shill: If you don’t like this state of affairs (your unemployment is running out), tell your Congress member.

      I’m trying desperately not to laugh myself sick here, but how many “small inventors” are there who are living off of unemployment insurance but are now going to be poor and destitute because they can’t enjoin companies like eBay for “stealing” “their inventions”? Note that I’m not asking how many small inventors are there who believe this is the case. I’m wondering how many there are in fact.

      I’m guessing zero. Anybody have a better guess?

  7. Just to say (while there are only 6 Comments in the thread) that I love the new thread format, but only when there is no argument and no more than about 20 comments.

    Such threads are not very interesting though, are they, and do not distinguish this site from all the others.

    What does distinguish it is the 100+ Comment threads where there is high quality argument between articulate people who know what they are talking about, but have opposing views. For such threads, the new format is not fit for purpose.

    When the dialogue is not laid out in unbroken chronological succession, one finds it harder to follow the argument. It is no longer fun, and so one eventually drifts away.

    MM is right, that one can begin by identifying the comment you are replying to. Quinn does it better, with his threads of ascendingly numbered comments. One just refers back to Comment #7 (or whatever). Now with Quinn, that’s OK because he generally has so few comments. But in a 100+ multi-commenter thread, like here, forever scrolling up and down to follow the line of argument between any two of the multitude, is tedious.

    Depressing is the hint Dennis gave us, that thread formats more fit for purpose are known, but blocked by patent rights from adoption by Dennis. Under the EPC, you can’t have a patent for something that is merely the presentation of Information (or for a program for a computer, per se).

    PatentlyO threads certainly Promote the Progress. But not in the useful arts. Rather, in the progress of patent law. Attention Michelle Lee: using patents to hinder progress in patent law is an abuse of the patent law, which is defensible only when it is promoting the useful arts.

    But perhaps I see it wrong. Perhaps it is copyright law that prevents Dennis using the best blogging software (unless he pays for a licence to compensate the creators for their thousands of hours of valuable creative work). Now that would make sense.

    1. So, Max, a comment on the new software and then a diatribe on for your anti-patent stance thrown in for good measure.

      I think that anyone with any moral decency would be highly offended by Lee–highly. I think Obama has clearly violated his oath to faithfully execute the laws of the U.S.A. by this sideways appointment of Lee.

      Really makes you wonder why he would do this when it appears that Lee would go through the Senate fine.

      1. I think that anyone with any moral decency would be highly offended by Lee–highly

        I’m curious because I don’t regularly hunt around the internets looking for stuff like this but … are there other individuals out there who share your, um, somewhat extreme view? If so, where are they congregating?

        1. And, MM, I keep asking you not to respond to my posts. I can only assume you are a paid poster otherwise you would not feel the need to soil every single post I make.

    2. Max, I totally agree that the current format is so unwieldy that continued participation in this blog by this person is unlikely.

      Of all the recent formats employed by Dennis, the Disqus format was fantastic in my humble opinion.

      1. Don’t quit just yet Ned. I enjoy your contributions (particularly as I don’t always agree with you). Dennis responds to feedback. I am confident he will find a fix.

        1. I think what you’ll really need is a layout that uses more of the screen width, at least in the comment section. The main problem when you get dozens of comments is that you can’t tell who’s replying to what post anymore (yes, they’re indented, but when a post is separated from its parent by 50 intervening posts a full 20 screens down, the indents become worthless). Better yet is a format that includes some sort of indicator to keep the indent levels straight – a great example of this is on Reddit, where it’s easy to tell what post is a reply of what other post because of the layout: link to reddit.com

      2. Things I liked about the Disqus format:

        - ability to edit and correct minor nits of spelling/grammar/fixing of tags (avoiding the banal counterposts that focus on a tree in the wrong forest)

        - voting up and down to reduce expressions of simple agreement/disagreement

        - flagging inappropriate comments and the subsequent (occasional) removal of said offensive commenting.

        .

        Things that I did not like and that (hopefully) can be improved:

        - mere downvoting that did not show the identity of those downvoting. If identity is helpful in upvoting, then the same should apply to downvotes.

        - while more work for the moderator, the lack of explicit rationale for posts being removed. Yes I realize that such rationale would be likely used “as an attack” against certain posters who seem to always violate civilized posting norms, but when you think about it, why should this NOT be the case? After all, the norms of civilization are meant to serve that very purpose, and if posters cannot bother to post in a civilized manner (read that as in an intellectually honest manner, as advocates would do in a court setting) then should we be inundated with that type of CRP?

          1. I also kind of liked the downvote functionality so I’d know when anon had read my post regardless of what it actually stated.

            Ha, me too. I also liked the upvote feature, especially the aspect that allowed anon to log out of Disqus and upvote all of his posts as “Guest Vote.”

      3. I wonder anon if what Obama has in mind is so bad that he couldn’t find anyone that would pass through the Senate to carry it out, so instead we get this trick appointment.

        1. I truly cannot fathom why the Executive branch is handling the top post in the patent office as poorly as they are.

          Hal Wegner posts a continuing violation day count meter – Is the president really that non-caring as to let this situation linger on, and on, and on…

          …and on, and on, and on….

          …and on, and on, and…

  8. Every patent commissioner since Don Banner has been a corporate stooge doing their best to turn our patent system into a king’s sport.

    We have the best government and appointees money can buy. Asset thieves are running the country. We had the mortgage ripoff, followed by the bailout ripoff, and now the two stage invention ripoff.

    The mortgage ripoff took 40% of everyone’s net assets, the bailout ripoff mortgaged the next two generations and the invention ripoff means that all American ingenuity of any value will be taken by transnational corporations to places with slave wages. The bulk of the value produced by those inventions will end up in offshore corporate tax dodges.

    It is true that those inventions will create jobs, just not in America or most other developed countries.

  9. NWPA: she appears to be an inside job–the fix is in.

    They’re still counting votes in Florida. I saw a hanging chad!

    Maybe you should get a bus, fill it with patent attorneys who think software patents are the greatest thing ever, and have them all pound on the USPTO doors in protest. Hal Wegner can drive.

  10. The bad news is that she appears to be an inside job–the fix is in. The good news is that she lacks legitimacy and I suspect people will undermine her because she was not appointed through the proper channels. If I were in Congress, I would be offended for her to put out a policy statement.

    1. Thank god that she’s an “inside job” and the fix is in!

      “If I were in Congress, I would be offended for her to put out a policy statement.”

      Even if it is just a rehash of an old policy statement? I mean, sure, you should be embarrassed about the old policy statement, because it is embarrassing. But why you’d be embarrassed yet over and again just because she made it makes no sense.

    2. I suspect people will undermine her because she was not appointed through the proper channels

      I suspect the same people who habitually “undermine” any attempt by the PTO to reign in the patent insanity will do so without any concern whatsoever for how Lee was appointed.

      In fact, I guarantee it.

      Lee’s alleged appointment concerns are just a convenient excuse for those people to pretend that they are “victims” of some nefarious plot to “take away their rights” and “ignore the Founders.” It’s a fairly common PR strategy. And it sounds really impressive in an echo chamber. Meanwhile, the PTO will grant another record number of patents to that same group of very well-heeled “victims.”

        1. He goes Carroll one better, an amusing if rather bizarre amalgamation of the perpetually enraged Red Queen and the voluble if bewildered Humpty Dumpty.

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